JAN 29 1998
PATRICK FISHER
Clerk
No. 97-6137
(D.C. No. CR-90-232-W &
CIV-96-2061-W)
(W.D. Okla.)
After examining appellants brief and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
might be procedurally barred, but rejected the claims on the merits. We proceed
on the same basis.
Easter first contends that the government violated his due process rights by
not producing, and possibly destroying, portions of a videotape that he contends
would have corroborated his trial testimony. See Brady v. Maryland, 373 U.S. 83,
87 (1963). It is unclear whether Easter contends that the failure to produce this
supposedly exculpatory evidence prejudiced him at trial or at sentencing, where
the district court apparently enhanced his sentence two points for obstruction of
justice due to his false trial testimony. However, Easter has failed to identify
what the alleged exculpatory evidence was, how it would have corroborated his
trial testimony, and how it would have affected his convictions or sentence. We
conclude this vague contention of error is without merit.
Easter next contends that a videotape introduced into evidence was
inadmissible because it was obtained without a warrant and therefore violated the
Fourth Amendment and federal wiretapping statutes this court stated should apply
to video surveillance. See United States v. Mesa-Rincon, 911 F.2d 1433, 1437
(10th Cir. 1990). The videotape, filmed with a government informants consent
in a hotel room rented by government agents for the informants use, showed the
informant giving a package containing a kilogram of cocaine base to Easter and
Easter then leaving the room with the package. Because the government had the
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informants consent to videotape the events in the hotel room, there was no
Fourth Amendment or statutory violation. See United States v. McKneely, 69
F.3d 1067, 1073 (10th Cir. 1995).
Finally, Easter challenges the validity of the sentence imposed under 21
U.S.C. 841(b)(1) and U.S.S.G. 2D1.1 as a result of his conviction of cocaine
base as opposed to cocaine. In his direct appeal, we rejected his argument that
these provisions were unconstitutionally vague because Congress failed to define
cocaine base, holding that cocaine base is sufficiently defined and
distinguishable from other forms of cocaine to prevent arbitrary and
discriminatory enforcement. Easter, 981 F.2d at 1558. Easter now argues that
because the terms cocaine and cocaine base are used interchangeably in the
scientific community, the terms are ambiguous, and under the rule of lenity, he
should have received a lesser sentence based on possession of cocaine rather than
cocaine base. He does not question the jurys finding that the substance he
possessed was cocaine base or crack cocaine. To the extent Easter raises a
different argument from the one he raised on direct appeal, we find it equally
unpersuasive. See United States v. Fields, 113 F.3d 313, 324-25 (2d Cir.)
(rejecting rule of lenity argument in similar circumstances), cert. denied, 118
S. Ct. 434 (1997); United States v. Sloan, 97 F.3d 1378, 1382-83 (11th Cir. 1996)
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(same); United States v. Jackson, 64 F.3d 1213, 1219-20 (8th Cir. 1995) (same);
United States v. Blanding, 53 F.3d 773, 776 (7th Cir. 1995) (same).
The application for a certificate of appealability is DENIED. The appeal is
DISMISSED. The mandate shall issue forthwith.
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